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WHY THE RULE OF LAW MATTERS
Guillermo
O'Donnell
.
Journal of Democracy
. Baltimore:Oct 2004.Vol.15, Iss. 4; pg. 32, 15 pgs
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- Find similar documentsSubjects:Democracy,Law,Equality,Political correctness
Author(s):Guillermo
O'Donnell
Document types:CommentarySection:
The Quality of Democracy
Publication title:Journal of Democracy. Baltimore:Oct 2004. Vol. 15, Iss. 4; pg. 32, 15 pgs
Source type:PeriodicalISSN/ISBN:10455736ProQuest document ID:726205401Text Word Count7047Document URL:http://proquest.umi.com.mizuna.cc.columbia.edu:2048/pqdweb?did=726205401&sid=2&Fmt=3&clientId=15403&RQT=309&VName=PQD
Abstract
(Document Summary)
The rule of law is among the essential pillars upon which any high quality democracy rests.
O'Donnell
explainswhat is needed in a truly democratic rule of law that ensures political rights, civil liberties, and mechanisms ofaccountability which in turn affirm the political equality of all citizens and constrain political abuses of state power.
Full Text
(7047 words)
Copyright Johns Hopkins University Press Oct 2004
The rule of law is among the essential pillars upon which any high-quality democracy rests. But this kind ofdemocracy requires not simply a rule of law in the minimal, historical sense that I will shortly explain. What isneeded, rather, is a truly democratic rule of law that ensures political rights, civil liberties, and mechanisms ofaccountability which in turn affirm the political equality of all citizens and constrain potential abuses of state power.Seen thus, the rule of law works intimately with other dimensions of the quality of democracy. Without a vigorousrule of law, defended by an independent judiciary, rights are not safe and the equality and dignity of all citizens areat risk. Only under a democratic rule of law will the various agencies of electoral, societal, and horizontalaccountability function effectively, without obstruction and intimidation from powerful state actors. And only whenthe rule of law bolsters these democratic dimensions of rights, equality, and accountability will the responsivcnessof government to the interests and needs of the greatest number of citizens be achieved.Although in some of my previous writings readers may find partial attempts at the theoretical and normative justification of a democratic rule of law, here I make only passing reference to these matters. My intention is tocontribute to a discussion concerning if and how something called the rule of law, or the democratic rule of law,may be conceptualized and, insofar as possible, empirically gauged. To this end, the concluding section of thisessay proposes a set of variables for the exploration of this dimension. Please note that what follows has beenformulated with contemporary Latin America centrally in mind; it is of course an open question how well it mightapply outside this region.
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The "rule of law" (like partially concurrent expressions such as Rechsstaat, état de droit, or estado de derecho) is adisputed term. For the time being, let me assert that its minimal (and historically original) meaning is that whateverlaw exists is written down and publicly promulgated by an appropriate authority before the events meant to beregulated by it, and is fairly applied by relevant state institutions including the judiciary (though other stateinstitutions can be involved as well). By "fairly applied" I mean that the administrative application or judicialadjudication of legal rules is consistent across equivalent cases; is made without taking into consideration the class,status, or relative amounts of power held by the parties in such cases; and applies procedures that arepreestablished, knowable, and allow a fair chance for the views and interests at stake in each case to be properlyvoiced. The following is a minimal but significant criterion: If A is attributed the same generic rights (and, at leastimplicitly, the same legal personhood and agency) as the more powerful B with whom A enters into a crop-sharingarrangement, employment contract, or marriage, then it stands to reason that A has the right to expect equaltreatment from the state institutions that have, or may acquire, jurisdiction over such acts.This implies formal equality, in two senses. First, it is established in and by legal rules that are valid (at least1) inthat they have been sanctioned following previously and carefully dictated procedures, often ultimately regulated byconstitutional rules. Second, the rights and obligations specified are universal, in that they attach to each individualconsidered as a legal person, irrespective of social position, with the sole requirement that the individual in questionhas reached competent legal adulthood and has not been proven to suffer from some (narrowly defined and legallyprescribed) disqualification. These rights support the claim of equal treatment in the legally defined situations thatunderlie and may ensue from the kind of acts above exemplified. "Equality [of all] before the law" is the expectationtendentially inscribed in this kind of equality.There is another important point: The rights and obligations attached to political citizenship by a democratic regimeare a subset of the more general civil rights and obligations attached to a legal person as a member of a givensociety. In addition to the well-known participatory rights to vote and run for office in fair elections, I am thinking ofthe freedoms (of expression, association, movement, and the like) that are usually considered necessary to theexistence of a democratic regime. In many highly developed countries, these and similar freedoms became legallysanctioned civil rights well before becoming political freedoms.On the other hand, strictly speaking there is no "rule of law," or "rule by laws, not men." All there is, sometimes, isindividuals in various capacities interpreting rules which, according to some preestablished criteria, meet thecondition of being generally considered law. Such a situation is clearly superior to a Hobbesian state of nature orthe creation and application of rules at the whim of a despot. Yet it is not enough that certain actions, whether ofpublic or private actors, are secundum legem, that is, in (interpreted) conformity with what a given law prescribes.For as I illustrate below, an act that is formally according to law may nonetheless entail the application of a rule thatis invidiously discriminatory or violates basic rights. Or such an act may involve the selective use of a law againstsome, even as privileged sectors are enjoying arbitrary exemptions. The first possibility entails the violation of moralstandards that most countries write into their constitutions and that nowadays, usually under the rubric of humanrights, countries have the internationally acquired obligation to respect. The second possibility entails the violationof a crucial principle of fairness-that like cases be treated alike. Still another possibility is that in a given case thelaw is applied properly, but by an authority that does not feel obligated to proceed in the same manner on futureequivalent occasions.These cases may be construed as being "ruled by law," but they do not meet the criteria we normally have in mindwhen using the term "rule of law." Rather, these possibilities indicate the absence, or at least serious breaches, of areasonable application of what the rule of law is supposed to be.Toward a Positive DefinitionAdvancing toward a positive definition of the rule of law is no easy matter. A first complication is that the conceptsof the rule of law and of estado de derecho (or Rechsstaat, or état de droit, or equivalents in other languages ofcountries belonging to the Roman-originated civillaw tradition) are not synonymous2-a topic to which I will return.Furthermore, each of these terms is subject to various definitional and normative disputations. Therefore, I will limitmyself to some basic observations. First, in both the civil-law and common-law traditions, most definitions have attheir core the view that under the rule of law, the legal system is a hierarchical one (usually crowned byconstitutional norms) that aims at yet never fully achieves completeness. This means that the relationships amonglegal rules are themselves legally ruled, and that there is no moment in which the whim of a given actor may justifiably cancel or suspend the rules that govern his or her actions. No one, including the most highly placedofficial, is above the law. In contrast, the hallmark of all forms of authoritarian rule, even those that are highlyinstitutionalized and legally formalized, is that at their apex sits some person or entity (a king, a junta, a party
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committee) that is sovereign in the classic sense of being able to make decisions unconstrained by law when thesovereign judges that there is a need to do so.Second, to say that "the government shall be ruled by law and subject to it" and that "the creation of law ... is itselflegally regulated"3 is to imply that the legal system is an aspect of the overall social order that in principle "bringsdefinition, specificity, clarity, and thus predictability into human interactions."4 Achieving this situation, though notnecessarily an unmixed blessing, is a great public good. A necessary condition for this is that the laws have certaincharacteristics. Many lists of such characteristics are available. Here I adopt one that legal scholar Joseph Razespouses:1. All laws should be prospective, open, and clear; 2. Laws should be relatively stable; 3. The making of particularlaws . . . must be guided by open, stable, clear, and general rules; 4. The independence of the judiciary must beguaranteed; 5. The principles of natural justice must be observed (i.e., open and fair hearing and absence of bias);6. The courts should have review powers ... to ensure conformity to the rule of law; 7. The courts should be easilyaccessible; and 8. The discretion of crime preventing agencies should not be allowed to pervert the law.5The first three points refer to general characteristics of the laws themselves. Each point pertains to the properenactment and content of the laws, as well as to a fact that Raz and others stress: The laws must be possible tofollow, and should not place unreasonable cognitive or behavioral demands on the addressees. The other points ofRaz's listing refer to the courts and only indirectly to other state agencies. Point four requires specification: Thevalue of independent courts (itself a murky idea) is shown, a contrario, by the often-servile behavior of the judiciaryin relation to authoritarian rulers. But this independence may be misused-and has been misused with somefrequency in democratized Latin America-to foster the sectoral privileges of judicial personnel or to allowunchallenged, arbitrary interpretations of the law. Consequently, it also seems required "that those charged withinterpreting and enforcing the laws [must] take them with primary seriousness."6To this I would add that the stewards of the law must hold themselves ready to support and expand that verydemocracy which, in contrast to the old authoritarian order, confers upon them such independence.7 This is a tallorder everywhere, and not least in Latin America, where a long roll of institutional innovations has shown scantsuccess in striking a proper balance between judicial subjection and excessive judicial independence. In this regionanother difficult accomplishment is implied by point six, especially with respect to overseeing the legality of actsperformed by presidents who feel themselves electorally empowered to do whatever they think best while in office. Iwill illustrate below the denial of redress to many of the poor and the vulnerable (points five and seven). The samegoes for the eighth point, particularly as regards the impunity enjoyed by police and other (so-called) securityagencies, as well as violence perpetrated by private agents who often take advantage of police forces and courtsthat are culpably indifferent toward or even complicit in such unjust acts.Aspects of the Rule of LawAt this point we should notice that, unlike estado de derecho and equivalent terms, the English-language phrase"rule of law," defined as above, does not refer directly to any state agencies other than courts. This is not surprisinggiven various countries' respective traditions, including the particularly strong role that the courts have played in thepolitical history of the United States. Nevertheless, the whole state apparatus and its agents are supposed tosubmit to the rule of law.Furthermore, if the legal system is supposed to texture, stabilize, and order manifold social relations, then whenstate agents or even private actors violate the law with impunity, the rule of law is truncated. Whether state agentsperpetrate unlawful acts on their own or give private actors de facto license to do so does not make muchdifference, either to the victims of such actions or to the (in)effectiveness of the rule of law.The corollary of these reflections is that, when discussed in relation to the theory of democracy, the rule of law-orestado de derecho-should be conceived not only as a generic characteristic of the legal system and theperformance of the courts, but also, and mostly, as the legally based rule of a democratic state. This entails thatthere exists a legal system that is itself democratic, in three senses: 1) It upholds the political rights, freedoms, andguarantees of a democratic regime; 2) it upholds the civil rights of the whole population; and 3) it establishesnetworks of responsibility and accountability which entail that all public and private agents, including the higheststate officials, are subject to appropriate, legally established controls on the lawfulness of their acts.8 As long as itfulfills these three conditions, such a state is not just a state ruled by law or a state that enacts the rule of law; it is astate that enacts a democratic rule of law, or an estado democratico de derecho.
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